How to prepare for mediation

This is the second in a series of briefings coinciding with the launch of the Singapore International Mediation Centre in November 2014. In our first briefing, we discussed the advantages and disadvantages of mediation for commercial parties. Here, Ben Giaretta and Katherine McMenamin explain what steps parties can take to help ensure they get the most from the mediation process.

1. Investigate and evaluate

Before a mediation, you should be aware of all the relevant facts and legal issues in the dispute. To enable you to do this, you should:

• conduct an internal investigation: this is a fact- gathering exercise, which should involve interviewing key personnel and examining all relevant documents and correspondence; and
• complete a case evaluation: this involves a thorough legal analysis and assessment of the strengths and weaknesses of your case. You should also weigh up all the possible outcomes, and the probabilities and costs associated with each. A decision tree can be a useful tool here.

2. Plan your strategy

Your strategy for the mediation will be informed by your investigation and evaluation. You should aim to:

• identify and prioritise your key interests, and know what it is you want to gain from the mediation;
• work out what the other side’s approach is likely to be, and what interests they will want to protect;
• know your bottom line: you need to know at what point you would be better off pursuing a different course and what that might be. This is sometimes referred to as the best alternative to a negotiated agreement (or BATNA).1

3. Decide who will be involved

A suitable negotiation team is crucial for reaching an agreement. Aim to select individuals who understand both the mediation process and what the business wants to achieve. It is important that these individuals have the authority to make a settlement. Ideally, key senior executives will be involved in supporting and driving the mediation process.

4. Choose the right counsel

Engage legal counsel who are constructive and facilitative, and who can support the deal-making which is at the heart of the mediation process. Whether in-house or external, the lawyers should work closely with the business to ensure your commercial goals are achieved.

5. Choose the right mediator

A mediator must be neutral and independent, and will need to be agreed to by both parties. The success of a mediation can often depend on the skill of the mediator, so it is important to select someone who is experienced and who has a good track record.

You might consider someone with specific qualifications or a background in the subject-matter of the dispute who can connect easily with the parties and help them review their positions; alternatively, someone who can bring a fresh perspective on the dispute, and who might strongly encourage the parties to reach a settlement.

Some mediation service providers have databases of accredited mediators that parties can search. They will produce a shortlist of suitable mediators on request and may even, if the parties agree to mediate but fail to agree on a mediator, appoint one for them.2

6. Meet the mediator

Preparing the mediator in advance of the mediation is vital. An initial meeting with each party can provide an opportunity for the mediator to get to grips with the dispute, become aware of any sensitivities, and allow them to understand what is at stake for each party.

7. Exchange information

The mediator will usually ask the parties to exchange fundamental documents and materials before the mediation, given that gaps in information may cause the mediation to fail. It can be helpful to prepare the following documents:

• a narrative of the history between parties and of the key documents: this can be drafted with a view to concluding a joint history narrative with the other side, which can help move both parties towards a more realistic view of the situation;
• a case summary: this is a concise written statement summarising the underlying facts, issues, key principles of law, and also any settlement demands or offers.

8. Sign a mediation agreement

A mediation agreement sets the ground rules for the mediation. The parties may affirm their commitment to the mediation process, and agree that the mediation will be confidential and without prejudice to the parties’ positions in the arbitration or litigation if no agreement is reached and the dispute process continues.

9. Use a mediation provider

A number of mediation providers have published mediation rules which parties may adopt.3 Although these are fairly general, they can provide a broad overall structure for the proceedings.

In addition, the administrative support provided by these bodies can be useful. This may include dealing with such matters as the appointment of the mediator, the mediator’s fees, and finding a suitable location for the mediation. They can also provide template documentation, such as a model mediation agreement.

A mediation provider can be engaged by submitting an online application form or written request.4 There will usually be a filing fee, and parties may be asked to make advance deposits to cover administrative expenses and the fees and expenses of the mediator.

10. Review and learn

Reviewing past experiences of mediation can help you prepare for the next one; and at the end of a mediation, you should set time aside to consider how it went. Over time, familiarity with mediation will enable you to get the most out of the process, because you will know what to expect and be better able to influence and shape the process to suit your needs, and to produce the best overall outcome.

In our next briefing, we consider a key question in mediation: when is the best time to hold a mediation?

Notes

1     See Getting to Yes by Roger Fisher, William Ury and Bruce Patton, chapter 6 (Random House, 2012).

2     See the Mediator Search Tool on the Centre for Effective Dispute Resolution (CEDR) website here. For other examples of procedures for appointing mediators, see the ICC Mediation Rules, Article 5; Singapore Mediation Centre Rules, Rule 4; and the World Intellectual Property Organization (WIPO) Mediation Rules Article 6.

3     The Hong Kong Mediation Centre published its Mediation Rules on 6 January 2014; the ICC’s new Mediation Rules came into force on 1 January 2014; the International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AAA), updated their Mediation and Arbitration Rules on 1 June 2014; and new WIPO Mediation Rules were also introduced on 1 June 2014.

4     For example, see the ICC Mediation Rules Articles 2 and 3; and see the application form on the website of the Singapore Mediation Centre here.

By Ben Giaretta (Partner, Singapore, Asia Head of International Arbitration, Ashurst) and Katherine McMenamin (Associate, Singapore, Ashurst)